Press Releases: January 2007

Defense Department Withholds Records About Army Blog Monitoring Program

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Defense today, demanding expedited information on how the Army monitors soldiers' blogs.

According to news reports, an Army unit called the Army Web Risk Assessment Cell (AWRAC) reviews hundreds of thousands of websites every month, notifying webmasters and bloggers when it sees information it finds inappropriate. Some bloggers have told reporters that they have cut back on their posts or shut down their sites altogether because of the activities of the AWRAC. EFF filed its suit after the Department of Defense and Army failed to respond to Freedom of Information Act (FOIA) requests about the blog monitoring program.

"Soldiers should be free to blog their thoughts at this critical point in the national debate on the war in Iraq," said EFF Staff Attorney Marcia Hofmann. "If the Army is coloring or curtailing soldiers' published opinions, Americans need to know about that interference."

EFF's suit demands records on how the AWRAC conducts its monitoring, as well as any orders to soldiers about revision or deletion of web posts. It also demands expedited processing, as the information is urgently needed by the public.

"Of course, a military effort requires some level of secrecy. But the public has a right to know if the Army is silencing soldiers' opinions as well. That's why the Department of Defense must release information on how this program works without delay," Hofmann said.

EFF's FLAG Project uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Previous lawsuits have demanded information about the FBI's huge database of personal information and the Department of Homeland Security's program to assign secret "risk assessment" scores to American travelers.

San Francisco - The Electronic Frontier Foundation (EFF) warned ABC, Inc. Thursday not to pursue its bogus copyright infringement claims against 'Spocko' -- a blogger who sparked nationwide debate over a San Francisco radio station -- and asked the media giant to retract its baseless threats.

The free speech battle began when Spocko posted audio clips of what he deemed to be offensive talk-radio rhetoric from ABC-owned and San Francisco-based KSFO-AM on his blog at www.spockosbrain.com. In response, ABC, Inc. sent a threatening letter to the blogger's hosting company, claiming that copyright law prevented Spocko from posting the clips. The hosting company responded by shutting Spocko's website down, forcing him to move to a different provider. In a letter sent to ABC, Inc. Thursday, EFF warned that further false copyright claims could compel Spocko to take action to protect his free speech rights.

"Copyright law is not designed to silence speech that you dislike," said EFF Staff Attorney Matt Zimmerman. "ABC and KSFO know that their legal threats were absolutely groundless. Their time and efforts are better spent explaining why they think Spocko is wrong, and letting the public decide, instead of resorting to thuggish legal tactics."

EFF's letter to ABC is the latest development in its ongoing campaign to protect online free speech from the chilling effects of bogus copyright claims. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

Legal Battle Over Controversial Prescription Drug Zyprexa

San Francisco - The Electronic Frontier Foundation (EFF) today defended the First Amendment rights of a citizen-journalist to link from a public "wiki" to electronic copies of damaging internal Eli Lilly documents relating to the controversial prescription drug Zyprexa.

At today's hearing, federal district Judge Jack B. Weinstein refused to change his order blocking publication of material that would "facilitate dissemination" of the Lilly documents. A further hearing on the issue is set for Tuesday, January 16.

EFF's client, an anonymous citizen-journalist, posted the links on the wiki located at http://zyprexa.pbwiki.com. Eli Lilly complained, and Judge Weinstein issued his order on January 4. EFF went to court today to challenge this order as an unconstitutional prior restraint on free speech in violation of the First Amendment and to ensure that the right of nonparties in the litigation to link to publicly important information remains protected.

"Preventing a citizen-journalist from posting links to important health information on a public wiki violates the First Amendment," said EFF Senior Staff Attorney Fred von Lohmann. "Eli Lilly's efforts to censor these documents off the Internet are particularly outrageous in light of the information reported by The New York Times, which suggests that doctors and patients who use Zyprexa need to know the information contained in those documents."

According to The New York Times reports, the Eli Lilly documents show that the company intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were leaked from the ongoing Zyprexa products liability lawsuit, where Weinstein is the presiding judge.

Copies of the leaked Eli Lilly documents have appeared on a variety of websites and other Internet sources. The links to the documents that were posted on the wiki at http://zyprexa.pbwiki.com were part of extensive, in-depth analysis from a number of citizen journalists. A wiki is a website that allows many users to collaborate on its content, creating a kind of simple database for collecting information -- in this case, about the controversy surrounding Zyprexa.

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Last week, Eli Lilly agreed to pay up to $500 million to settle claims relating to Zyprexa. This latest settlement brings the total paid by Eli Lilly to resolve lawsuits involving Zyprexa to more than $1.2 billion.

Ruling Impedes Search for Answers in Sarasota County Congressional Race

Tallahassee, Fla. - A bipartisan group of Florida voters today challenged a court ruling that is preventing a thorough, independent investigation into alleged voting machine failures in the state's 13th congressional district race.

The appeal asks for a reversal of last week's ruling that allowed electronic voting machine vendor Election Systems & Software (ES&S) to keep its software, hardware, and related documentation hidden from the voters -- even though experts from both sides agree that something went seriously awry during November's election.

"The court wrongly decided that the voters' legitimate demand to determine who won their election was less important than the remote possibility that an independent investigation by nationally-recognized experts would harm the trade secrets of the vendor," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "The court could easily have addressed the vendor's concerns the same way trade secret concerns are usually handled in litigation -- by simply issuing a protective order that set limited use of the information to the litigation. The judge had the power to protect the interests of all parties. Unfortunately, in this case, he decided not to use it."

According to the electronic voting machines used during the November general election, more than 18,000 people in Sarasota County -- approximately 15% of the voter turnout -- did not cast a vote for any congressional candidate for the hotly contested seat. Instead of performing a robust analysis of the county's voting machines and software, the Florida Elections Canvassing Commission certified Vern Buchanan as the winner by 363 votes.

The voter plaintiffs' appeal comes days after a key member of the House of Representatives weighed in on the disputed Florida congressional election, saying that not only the litigants but the House of Representatives itself would benefit from more open discovery. On Thursday, the incoming Chairwoman of the House Administration Committee -- which has the responsibility for evaluating any House election contest -- submitted a letter to the Florida First District Court of Appeal noting that the House's evaluation would be assisted by the creation of a complete record, including all relevant and critical evidence.

EFF, VoterAction, People for the American Way Foundation, and the ACLU Foundation of Florida represent 11 Sarasota voters seeking an investigation into likely voting machine malfunctions and a revote if lost votes cannot be recovered. The suit is nonpartisan and not affiliated with either candidate from the race.